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HomeMy WebLinkAbout2002-108 f THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 2002- 108 Being a by-law to authorize the execution of an agreement with S-N Diesel for the lease of one transit bus to be used within the Municipality of Clarington. NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: THAT the Mayor and Clerk are hereby authorized to execute, on behalf of The Corporation of the Municipality of Clarington and seal with the Corporate Seal, an agreement between S-N Diesel and The Corporation of the Municipality of Clarington, an agreement to the satisfaction of the Director of Engineering Services. BY-LAW read a first and second time this 24th day of June, 2002. BY-LAW read a third time and finally passed this 24th day of June, 2002. Joh Mutton, Mayor Patti arri unicipal Clerk July 24,2002 EQUIPMENT LEASE AGREEMENT THIS AGREEMENT made as of this 2e day of Iuly,2002 BETWEEN: TOKMAKJIAN LTD. dba SN DIESEL SERVICE 221 CALDARI RD. CONCORD, ONTARIO L4K 3Z9 (Hereinafter called the"Lessor) OF THE FIRST PART AND: CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET BOWMANVILLE, ONTARIO LIC 3A6 (Hereinafter called the"Lessee") OF THE SECOND PART NO. OF UNITS, MODEL NO,, YEAR, UNIT#, DESCRIPTION(VIN NUMBER) 1 GRUMMAN 1980 606 1GF4AC8KOAD092939 FLX03LE LICENSE#BK2-773 2 TERMS OF PAYMENT(Total subject to any provincial sales tax and goods and services% changes) (a) Term in Months: 5 Months (b) Number of Rental Payments: 5 in Total (c) Payments will be made: 12a of each Month (d) First Rental Due Date: Month: September Day: 12 Year: 2002 (e) Amount of Each Rental Payment excluding sales tax: $2000.00 Amount of GST each payment: 140.00 Amount of PST each payment 160.00 TOTAL AMOUNT OF EACH PAYMENT $2300.00 (f) Security Deposit: Due prior to delivery NON REFUNDABLE $4600.00 to be applied to first& last rental payment. (g) option price and date: $10,000.00 at the end of the 5*month of the lease term. TERMS AND CONDITIONS OF LEASE For and in consideration of the covenants and agreements by the Lessee to pay the total rental payment herein provided for and to perform the terms, covenants and conditions on the Lessee's part herein contained, the Lessor hereby leases and lets unto the Lessee, and the Lessee hereby leases and takes from the Lessor, the equipment, for the term set forth above (commencing on the date of the first delivery of any of the said equipment to the Lessee) and upon and subject to the covenants, conditions and provisions hereinafter set forth. 1. RENTAL. For the use of the said equipment, the Lessee shall pay to the Lessor at the Lessor's office, at 221 Caldari Rd. Concord Ont. the total rental payment equal to the amount of each rental payment specified above multiplied by the number of rental payments specified above. The Security Deposit is due prior to delivery The First Rental Due Date is indicated above. Subsequent rental payments shall become due in every consecutive month or period, as the case may be, thereafter on the same date of each such month or period, as the First Rental Due Date indicated above, or in the event that there is no such corresponding date, the last date of the said month. Rental payment hereunder is payable without abatement. 3 2. REPRESENTATIONS AND WARRANTIES: Each unit of said equipment leased hereunder is a size and capacity personally chosen and selected by the Lessee and the Lessee is satisfied that the same is suitable for its purposes and the Lessor has made no representation or warranty with respect to the suitability or durability or any such representation or warranty express or implied with respect hereto. Specifically, Sections 13,14 and 15 of the Ontario Sale of Goods Act are excluded from the agreement. The Lessee renounces the right to any claim or defence against the Lessor relating to said equipment. In the event of an action brought by the Lessor for default under the provisions of this Lease, the Lessee waives all defences predicated on the failure of said equipment to perform the function for which it was designed and further acknowledges and agrees that such failure shall not be deemed to be in breach of this Lease. 3. GOVERNING LAW. This Lease shall be interpreted and enforced in accordance with the laws of the Province of Ontario. 4. EQUIPMENT OWNED BY LESSOR. This agreement is one of leasing only and the Lessee shall not have or acquire any right, title or interest in or to said equipment except the right of the Lessee and its component employees to use or operate said equipment as provided herein. The Ontario motor vehicle registration relating to ownership shall remain in the name of the Lessor while the plate portion of the vehicle registration shall be in the name of the Lessee. 5. LOSS OR DAMAGE TO EQUIPMENT. The Lessee assumes the entire risk of loss of or damage to said equipment from any cause whatsoever. No loss or damage to said equipment or any part thereof shall affect or impair the obligations of the Lessee hereunder which shall continue in full force and effect. It is understood and agreed that this Lease shall not prejudice the subrogation rights of any insurance carrier. 6. NO SUBLEASE OR ASSIGNMENT OF LEASE BY LESSEE. The Lessee shall not transfer, deliver up possession of or sublet said equipment and this Lease shall not be assignable by the Lessee without written permission of the Lessor, which permission shall not be unreasonably withheld. Nothing contained herein shall prevent the Lessor from assigning, pledging, mortgaging, transferring or otherwise disposing, either in whole or in part of the Lessor's rights hereunder. 7. MAINTENANCE OF AND EXPENSE OF EQUIPMENT. The Lessee shall at all times and at the Lessee's own expense keep said equipment in good and efficient working order and repair and shall fimsh any and all parts, mechanisms and devices required to keep said equipment in good mechanical and working order. The Lessor, its employees and/or agents shall at all times have access to said equipment for the purpose of inspecting it. The Lessee shall be responsible for any and all costs incurred in the operation of the equipment, including but not limited to, operating expenses, wages for drivers, fines or judgments, disbursements, maintenance, insurance, licences, repairs and capital replacements. In addition, the lessee must maintain the power train as per the manufacturers requirements. Any failure caused by misuse, neglect or abuse will be at the lessee's expense. The rate shall be a net, net rate for the Lessor and the Lessee shall be responsible for any costs, charges, expenses and outlays of any nature whatsoever arising from or relating to the 4 equipment. In the event of a major power train failure (engine or transmission), a replacement vehicle of equal value will be supplied to the Lessee at no charge. The replacement vehicle will be sent within 24 hours of notification of failure during normal business hours, Monday to Friday. The Lessor maintains the right to inspect the failure of the engine or transmission prior to supplying the replacement vehicle. 8. COMPLIANCE BY LESSEE WITH ALL LAWS, ORDINANCES, ETC. The Lessee shall comply with and conform to all laws, ordinances and regulations present or future, in any way relating to the ownership, possession, use or maintenance of said equipment throughout the term of this Lease and to the perfect exoneration from liability of the Lessor. 9. EQUIPMENT TO BE KEPT FREE OF LEVIES, PRIVILEGES, LIENS, CHARGES, ECT. The Lessee shall keep said equipment free of levies, privileges, liens and encumbrances and shall pay all licence fees, registration fees, assessments, charges and taxes (Municipal, Provincial and Federal), which may be levied or assessed, directly or indirectly against or on account of said equipment or any interest therein or use thereof. If the Lessee shall fail to pay such licence fees, registration fees, assessments, charges or taxes, the Lessor may pay such licence fees, registration fees, assessment charges and taxes as the case may be in which event the cost thereof shall be forthwith due and payable by the Lessee. 10. INDEMNIFICATION OF LESSOR BY LESSEE. The Lessee shall indemnify the Lessor against and hold the Lessor harmless from any and all claims, action, suits, proceedings, costs, expenses, damages and liabilities, including legal fees, arising out of connected with, or resulting from said equipment, including, without limitation, the manufacture, selection, delivery, installation, possession, use, operation or return of said equipment or otherwise on account of any personal injury or death or damage to property occasioned by said equipment or the negligence of employees, servants or agents of the Lessee, or on account of any infringement or alleged infringement of patent occasioned by the operation of said equipment. 11. INSURANCE. The Lessee shall, at its sole expense, place and maintain, in a form and with coverage and limits acceptable to the Lessor: (a) "all risks" insurance against the loss or theft of or damage to said equipment, for the full replacement value thereof, naming Lessor as an additional insured; and (b) public liability and property damage insurance, naming the Lessor as additional insured, covering any liability and property damage insurance, naming the Lessor as additional insured, covering any liability in respect of the use, operation, possession, or ownership of said equipment. The maximum obligation of the coverage on behalf of the Lessee for repair or replacement of the vehicle in the event of a loss shall not exceed$20,000.00. Such insurance policies shall contain a provision prohibiting termination of the policy except upon thirty days notice by the insurer to the Lessor. However, any insurance coverage acquired hereunder by the Lessee shall in no manner restrict or limit the liabilities assumed by the Lessee hereunder. The Lessee shall furnish to the Lessor certified copies of the said insurance policies. Should the Lessee fail to obtain such coverage he shall, in addition to the obligations assumed under Clause 10 of this Lease, indemnify the Lessor for any loss of, or damage to, the said equipment. 5 12. TERMINATION ON DEFAULT. Upon the occurrence of any event of default, the Lessor shall be entitled at its option, exercisable with or without written notice to the Lessee, at the discretion of the Lessor, to consider the Lessee in default, where, at the discretion of the Lessor: (a) the Lessee shall be obligated to return said equipment to the Lessor, without fin ther notice, the Lessor may take possession of the equipment and for such purpose the Lessee hereby grants to the Lessor the right to enter the premises at the equipment's location for the purpose of taking possession and waives claims for any damages, whether to property or otherwise, arising out of the taking of possession; (b) terminate this agreement; (c) without terminating or being deemed to have terminated this Lease, as agent and attorney for the Lessee, sell or lease the equipment upon such terms as the Lessor deems advisable; or (d) in addition to any other right or remedy, the Lessor may have at law or in equity, demand as a genuine pre-estimate of liquidated damages for loss of bargain and not as a penalty, the then present value of all the unpaid and future rental payments (calculated by discounting such rental payments at the rate of five percent(5%). The Lessee will pay all costs arising or incurred by the Lessor as a result of default, including legal fees on a solicitor and his own client basis and other expenses incurred by the Lessor in attempting to enforce the provisions of this Lease or to recover damages for breach thereof including costs and expenses associated with the seizure and the sale of said equipment. The Lessee will pay the Lessor interest at the rate of one and a half percent (1 1/2%) per month or eighteen percent (18%) per annum on all sums not paid by the Lessee to the Lessor when due and owing under the provisions of the Lease. Such interest shall be calculated monthly, not in advance, and be due and payable monthly on the same days as provided for the payment of rental payments so long of any monies due and payable hereunder is in arrears. All rights of the Lessor are cumulative and not alternative and may be exercised by the Lessor separately or together, in any order or combination. 13. EVENTS OF DEFAULT. Any of the following shall each constitute an"event of default"; (i) the failure of the Lessee to pay any instalment of the rental payment or any other sum due under the terms of this Lease; (ii) the breach of any covenant or condition in this Lease; (iii) the subjection of said equipment to any lien, levy, privilege, seizure or attachment; (iv) any assignment by the Lessee for the benefit of creditors; (v) the admission of the Lessee in writing of its inability to pay its debts generally as they become due; (vi)the appointment of a receiver, trustee or similar official for the Lessee or for any of its property; (vii) the filing by or against the Lessee of a petition in bankruptcy or a petition for the 6 reorganization or liquidation of the Less under any Federal or Provincial laws; (vii) any other act of bankruptcy by the Lessee. 14. ASSIGNMENT BY LESSOR. Should the Lessor assign the sums due and to become due hereunder to any bank, insurance company or other lending agency (of which assignment the Lessee hereby waives notice and signification), the Lessee shall recognize such assignment and should the Lessor default in the performance of any of the terms and conditions of this Lease, the Lessee may not as to such assignee, terminate this Lease or subject the Lessee's obligation to pay money under this Lease to any diminution or right of set-off or compensation. Nothing herein contained shall release the Lessor from its obligation to perform any duty, covenant or condition required to be performed by the lessor under the terms of this Lease should the same be so assigned. 15. RETURN OF EQUIPMENT UPON TERMINATION. Upon the termination of this Lease for any reason, the Lessee shall at its cost, return said equipment to the Lessor at a place designated by the Lessor and of the Lessee fails to do so, the Lessor shall have the right to enter upon the premises where said equipment may be and take possession of and remove it at the Lessee's expense, all without legal process. In the event that with or without the consent of the Lessor, the Lessee remains in the possession of or uses said equipment after the expiration of the term of this Lease, all the provisions of this Lease shall apply thereto unless and until the same has been surrendered pursuant to the terms of this Clause, or the Lessor has relieved the Lessee from its obligations under this Lease with respect to said equipment. Nothing in this clause shall have the effect of extending or renewing the term of this Lease. 16. TIME OF THE ESSENCE. Time is of the essence of this Lease and of each and all of its provisions. 17. INTERPRETATION. It is hereby agreed by and between and parties hereto that whenever the context of this Lease so requires, the singular number shall include the plural and vice versa, and that words importing the masculine gender shall include the feminine and neuter genders, and that in case more than one Lessee is named as Lessee, the liability of such Lessee shall be joint and several. 18. NON-CANCELLABLE LEASE. This lease cannot be cancelled or terminated except as expressly provided herein and will remain in force for the full term indicated herein. 19. LEGAL EXPENSES. If this Lease is placed in the hands of the lawyer for collection or enforcement, the Lessee agrees to pay all costs, charges and expenses incurred by the Lessor as well as reasonable legal fees which the Lessor will be obligated to pay its lawyer. 20. LOCATION OF EQUIPMENT. The said equipment shall be located and used in the Municipality of Clarington or in the City of Oshawa and shall not be removed therefrom without the prior written consent of the Lessor. 21. SECURITY DEPOSIT. As security for the due performance by the Lessee of all its obligations hereunder, Lessee has paid to Lessor the security deposit as specified herein. Lessor may apply the security deposit to any sums due hereunder in which event the Lessee shall promptly restore the security deposit to the full amount specified herein. The security 7 deposit shall not relieve the Lessee from any of the Lessee's obligations hereunder. Security deposit is non-refundable, but may be applied to first and last month rental payment. 22. OPTION TO PURCHASE. Lessee shall have the right to purchase said equipment leased hereunder, on "where-is, as-is" basis on the "Purchase Option Date" and for the price indicated on this Lease (which price is the estimated fair market value of said equipment at said date as determined by written agreement of the parties or failing agreement for a period of five days by an independent appraiser acceptable to the parties whose cost shall be shared equally by the Lessor and the Lessee) provided this Lease is then in force and the terms hereof have not been altered by agreement between the parties or otherwise and provided the Lessee has not defaulted thereunder and has notified the Lessor in writing of its intention to purchase said equipment not less than sixty (60) days prior to the option date. Title to the equipment shall pass to the Lessee upon payment of the purchase price. The "Purchase Option Date" is the later of the day on which the initial term of five (5) months created by this Lease, expires, and if the initial term is extended pursuant to paragraph 24, the day on which the renewal of the initial term expires. 23. Lessee will provide Province of Ontario licence plates for vehicles for Lease term, at its cost, Lessee agrees to pay in full prior to delivery of vehicles. Costs will include registration, licence plates and applicable sticker. Under such agreement Lessee will pay any and all violations, tickets, fines, moving or otherwise attained in Canada or the United States. Lessee will provide original copies of any violations sent to their office, at which time, Lessee will pay, plead or answer to such summons in accordance with the Laws of the Province, State, County or Region. Lessor will provide a roadworthy vehicle and a mechanical fitness certificate at start of the lease. 24. LEASE RENEWAL OPTION. When not in default hereunder, at any time prior to the expiry of the initial five month term of this Lease the Lessee may exercise the option to renew this Lease by giving the Lessor thirty (30) days written notice of its exercise, for a further term of five months on the same terms and conditions as set out herein other than this option to renew. 25. NOTICE. If any notice or other document is required to be or may be given by either party hereto to the other or by any official of the Municipality to SN Diesel Service under this Agreement, such notice shall be transmitted by telefax or mailed by prepaid post or delivered to: Lessor: SN Diesel Service 221 Caldari Rd. Concord, Ontario L4K 3Z9 Attention: Bill Fields, General Manager Fax: (905) 669-9821 8 Lessee: The Corporation of the Municipality of Clarington 40 Temperance Street Bowmanviiie, Ontario L1C 3A6 Attention: A.S. Cannella, Director of Engineering Services Fax No.: (905)623-9282 or such other telefax number or address of which a party has notified the Municipality in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this Agreement and if telefaxed or delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) shall be deemed to have been received at the time of delivery or transmission and if mailed by pre- paid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the mailing thereof. Notwithstanding the foregoing, in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above, then such notice shall be sent by an alternate means of transportation which may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. 26. FORCE MAJEURE. For the purposes of this Agreement, the term"Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military authority, acts of public enemies, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water, earthquake or other casualty, or an Act of God and any act, omission or event whether of the kind herein enumerated or otherwise not within the control of the Lessor or the Lessee, none of which has been caused by the deliberate default or act or omission by such party and none of which has been avoidable by the exercise of reasonable effort or foresight by such party. 9 THE UNDERSIGNED agree to all terms and conditions as set forth above and in consideration thereof hereby execute this Lease. DATED this C day of \—TA 1- 72002 -Lessor Pert' ,4 sr'fnld-1 Cv� ' Sigc and Title I am authorized to bind the corporation s e Per: Signs Title John Mutton, Mayor Per: signs an itle(if required) Patti L Barrie, Clerk I am authorized to bind the corporation nn Bill Fields General Manager DIESEL A Division of Tokmakjian Ltd. 221 Caldari Road, Concord, Ontario L4K 3Z9 Tel: (905) 669-2850 Fax: (905) 669-9821 Direct Line: (905) 738-7830 ext. 249 E-Mail: bfields @sndiesel.com Cladn4aon Leading the Wad REPORT ENGINEERING SERVICES DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: MONDAY. JUNE 17. 2002 Resoiution #: Report#: _GD-32-02 File #: G.55.05 3y-law#: Subject: CLARINGTON TRANSIT, BOWMANVILLE BUS LOOP UPDATE Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report EGD-32-02 be received; 2. THAT the Purchasing By-law 94-129 be waived and approval granted to lease a transit bus to provide additional capacity to the transit service in the Bowmanville urban area; 3. THAT a by-law be passed to authorize the Mayor and Clerk to execute an agreement on behalf of the Municipality of Clarington with S-N Diesel for the purpose of leasing a transit bus; 4. THAT a by-law be passed to approve the transit fare structure to commence on September 3, 2002 as detailed in this report; 5. THAT the costs for the lease of the transit bus and its operations be financed from the redirected GO Transit capital allocation from the Region of Durham; and 6. THAT the by-laws attached to Report EGO-32-02'be approved. Submitted by: Reviewed by: A.S. Cannella, C.E.T. Franklin Wu Director of Engineering Services Chief Administrative Officer RDB'ASC'ce 7 0 ATTACHMENT NO.: 1 REPORT NO.: EGD-32-02 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 2002- Being a by-law to authorize the execution of an agreement with S-N Diesei for the lease of one transit bus to be used within the Municivaidy of Clarington. `SOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: THAT the Mayor and Clerk are hereby authorized to execute.on behalf of The Corporation of the Municapality of Clarington and seal with the Corporate Seal,an agreement between S-N Diesel and The Corporation of the Munwitmay of Clarington. an agreement to the satisfaction of the Director of Engineering Services. BY-LAW read a first and second time this 20 day of June,2002. BY-LAW read a third time and finally passed this 241"day of June,2002. John Mutton,Mayor Patti L. Same.Municipal Clerk 706